Obama's turn to make terror rules

From wiretaps to Gitmo, he faces pressure to overhaul Bush framework without sacrificing gains made in the name of security

November 20, 2008|By James Oliphant, WASHINGTON BUREAU

WASHINGTON — It's called the President's Daily Brief, or, more informally, the "threat matrix." And it could change the way President-elect Barack Obama views the world and the dangers that lie within.

Obama began receiving daily intelligence reports -- the ones given to President George W. Bush -- immediately after the election. They provide a far more detailed look at terror threats around the world than he received as a senator or presidential candidate.

"If ever there were proof of the existence of evil in the world, it is in the pages of these reports," former Atty. Gen. John Ashcroft once said about the briefings.

Obama and his national security advisers likely will be keeping those reports in mind as they consider reforms to the current administration's counterterrorism policies. Already, civil-liberties groups and others have compiled a "wish list" of sorts, seeking the repudiation of highly controversial tactics that have included domestic surveillance, extended detention, "enhanced" interrogation, and extraordinary rendition.

"This administration got a chance to make all its own rules," said Annemarie Brennan of Amnesty International USA.

Now it's Obama's turn. He will be faced with decisions on whether to perpetuate current policies, reverse them, or devise a new approach. But tempering Obama's desire to close the book on an administration that has been accused by critics of violating domestic and international law will be the need to ensure that the nation remains protected.

"I would expect any president to be very wary of limiting intelligence capability," said Matthew Waxman, a former senior official with the National Security Council and the State Department during the Bush administration. Moreover, he says, Obama is likely to be "somewhat cautious" in yielding presidential flexibility and authority.

What confronts Obama is nothing less than a choice on whether to dismantle the legal framework that the Bush administration created in the wake of Sept. 11. Shortly after the attacks, the White House, Pentagon, and the Justice Department determined that existing legal processes, both civilian and military, were inadequate to meet the threat posed by international terrorism.

In light of this, the administration created a new category -- enemy combatants -- for fighters in Afghanistan, and later Iraq, captured on the field of battle. They could be held, administration lawyers contended, indefinitely, with no right to legally challenge their detention. They could be interrogated using methods that went beyond those commonly used by the military and law enforcement. And they would be tried by special tribunals that used relaxed standards for evidence and due process. Others who weren't held or interrogated in military custody were sent to other countries for interrogation, or held in secret CIA prisons outside the country.

The administration also commissioned a classified domestic eavesdropping plan for monitoring international calls that dispensed with legal requirements for obtaining warrants. When that plan came to light, the administration pushed legislation through Congress this year that granted it much of the surveillance authority it sought, along with providing immunity for telecom companies that had allegedly cooperated in the secret program.

More recently, the Justice Department announced new guidelines that would allow the FBI to open investigations without probable cause to believe that a crime had been committed and to target specific groups in the name of national security.

Occasionally, the Supreme Court and Congress have pushed back, but more often, the administration has gotten its way. At the heart of policies lies the belief in the sweeping power of the president and the executive branch during a time of war.

The bedrock assumption that the administration could do what it needed to protect the country, largely unfettered by constitutional restrictions and congressional oversight, is one thing that could be quite different during Obama's tenure, which appears poised to be more inclusive.

Human-rights and civil-liberties groups are pushing the Obama administration to do the following, some of which he could accomplish by executive order rather than an act of Congress:

* Close the prison at Guantanamo Bay, Cuba. Obama has repeatedly expressed his desire to do so.

* Dismantle the military commission process for trying accused terrorists and instead try them in federal courts.

* Issue an executive order that ends rendition, the practice of sending a suspected terrorist to another country to be held and questioned.

* Issue an order that a single standard be used in interrogating terror suspects.

* Scale back amendments passed this year to the federal law that governs the surveillance of foreign agents, and that provided retroactive immunity from lawsuits to telecom companies.

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joliphant@tribune.com

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